People v. Smith CA2/6

Filed 12/17/15 P. v. Smith CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B257220 (Super. Ct. No. BA420012) Plaintiff and Respondent, (Los Angeles County)

v.

DEONDRE ALFRED SMITH,

Defendant and Appellant.

A jury convicted appellant Deondre Alfred Smith of second degree robbery. (Pen. Code, § 211.)1 He waived a jury trial on allegations that he had a prior strike (§§ 667, subds. (b)-(j), 1170.12), had served three prior prison terms within five years (§ 667.5, subd. (b)), and had a prior serious felony conviction (§ 667, subd. (a)(1)). The trial court found the allegations to be true. Appellant was sentenced to an aggregate prison term of 12 years, consisting of 3 years for the offense, doubled as a second strike, 5 years for the prior serious felony conviction, and 1 year for one of the prior prison terms. The trial court stayed a one-year enhancement for one of the other prior prison terms (§ 654) and, pursuant to the People's motion, dismissed the remaining prior prison term allegation.

1 All further statutory references are to the Penal Code.

Appellant contends there was insufficient evidence to support the jury's guilty verdict and the trial court's finding that he suffered the prior serious felony conviction used as a first strike to double his three-year sentence and as a five-year sentence enhancement. The People concede that the evidence of the prior conviction was insufficient. We affirm appellant's conviction, reverse the trial court's finding that he suffered the prior serious felony conviction, and remand for retrial on that allegation. FACTS Victim Michael Brennan was returning home from a club in Hollywood around 2:00 a.m. He had consumed at least three beers and was "buzzed" but "not . . . intoxicated." He entered the Metro Red Line station at Hollywood and Highland and got on the down escalator. A man in a red shirt in front of him on the escalator, later identified as Tarrant Stewart, approached him and began asking for money. When they reached the bottom of the escalator, the victim noticed appellant, a third man, and a woman standing there. Appellant and Stewart dragged the victim about 10 feet into an elevator. The third man and the woman accompanied them. Appellant and Stewart threw him on the ground. The third man stood back and the woman said, "Don't hurt him." The victim said he had no money and pleaded with them not to hurt him. Appellant held him down and punched him in the face. Someone—the victim thought appellant but was unsure—said, "Get it, get it, get it." Someone reached into the victim's pocket and took his iPhone 4S. The group of four left the elevator together. The victim chased them up the stairs. Outside the station, appellant and the woman started walking towards the victim "like nothing [had] happened." The victim could not see the other two males. He saw police officers nearby and began screaming at appellant, "You stole my phone[!] You stole my phone[!]" Appellant screamed, "I did not steal your phone[!]" The police officers came over. The victim told them what had happened. He spoke coherently and articulately. Appellant was arrested. He did not have the victim's phone, which was never recovered.